Citation NR: 9804093
Decision Date: 02/11/98 Archive Date: 02/17/98
DOCKET NO. 96-19 949 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to an increased (compensable) evaluation for left
ear hearing loss.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
David S. Nelson, Associate Counsel
INTRODUCTION
The veteran had active duty from June 1964 to January 1967.
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a January 1995 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Louisville, Kentucky, which granted service connection for
left ear hearing loss and assigned a noncompensable rating.
In August 1997 the RO informed the veteran that his appeal
was being certified to the Board of Veterans Appeals for
appellate review and that the veteran had 90 days in which to
submit additional evidence. On January 5, 1998, the Board
received additional evidence from the veteran. The evidence
includes materials which indicate that the veteran’s hearing
has worsened since the October 1994 VA audiometric
examination. As these materials were not submitted within
the 90 day period, it is the Board’s decision to refer the
evidence to the RO to reopen the veteran’s claim. See
38 C.F.R. § 20.1304(c) (1997). The RO will undertake such
development as may be approipriate.
In his January 1998 brief, the veteran raised the issues of
entitlement to service connection for tinnitus, headaches and
loss of equilibrium. As these issues have not been developed
or certified for appellate review, they are not herein
addressed, but are referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the noncompensable
evaluation assigned by the RO for the service-connected left
ear hearing loss does not accurately reflect the severity of
the disability. Therefore, a favorable determination is
requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the preponderance of the evidence is against the claim for an
increased (compensable) evaluation for left ear hearing loss.
FINDING OF FACT
Result of a VA audiometric examination corresponds to not
more than level I hearing acuity in the left ear.
CONCLUSION OF LAW
The schedular criteria for a compensable evaluation for a
left ear hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A person who submits a claim for benefits under a law
administered by the VA shall have the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well-grounded. See
38 U.S.C.A. § 5107(a). The United States Court of Veterans
Appeals (Court) has held that a mere allegation that a
service-connected disability has become more severe is
sufficient to establish a well-grounded claim for an
increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381
(1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992).
Accordingly, the Board finds that the veteran’s claim for an
increased rating is “well-grounded” within the meaning of 38
U.S.C.A. § 5107(a).
Once a claimant has presented a well-grounded claim, the VA
has a duty to assist the claimant in developing facts which
are pertinent to the claim. See 38 U.S.C.A. § 5107(a). The
Board finds that all relevant facts have been properly
developed, and that all evidence necessary for equitable
resolution of the issue on appeal has been obtained. The
evidence includes the veteran’s personal hearing testimony,
service comrade letters, physician statements, and an October
1994 VA audiometric examination. The Board is not aware of
any additional evidence pertinent to the veteran’s claim
other than that referenced in the introduction. Under the
circumstances, the Board finds that the duty to assist the
veteran has been met. 38 U.S.C.A. § 5107(a).
Disability ratings are determined by applying the criteria
set forth in the VA’s Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an
increase in an existing disability rating based on
established entitlement to compensation is at issue, the
present level of disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
Evaluations of unilateral defective hearing range from
noncompensable to 10 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with average hearing
threshold level as measured by pure tone audiometric tests in
the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per
second. To evaluate the degree of disability from defective
hearing, the rating schedule establishes eleven auditory
acuity levels designated from level I for essentially normal
acuity through level XI for profound deafness. In situations
where service connection has been granted only for defective
hearing involving one ear, and the appellant does not have
total deafness in both ears, the hearing acuity of the
nonservice-connected ear is considered to be normal. In such
situations, a maximum 10 percent evaluation is assignable
where hearing in the service-connected ear is at level X or
XI. 38 U.S.C.A. § 1160; 38 C.F.R. § 4.85;
Diagnostic Code 6100. Further, the United States Court of
Veterans Appeals (Court) has held that disability ratings for
hearing impairment are derived by a mechanical application of
the rating schedule to the numeric designations assigned
after audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345 (1992).
A VA audiometric examination in October 1994 shows that left
pure tone thresholds were reported as 40, 40, 45 and 65
decibels at 1000, 2000, 3000, and 4000 hertz, respectively,
for an average of about 48 decibels. Speech recognition was
100 percent. The right ear was within normal limits.
At his January 1995 personal hearing the veteran testified
that his hearing problem was severely jeopardizing his
attempt to obtain teacher certification in that he had failed
a hearing test in conjunction with that program.
The mechanical application of the rating schedule to the
audiometric findings recorded on the October 1994 VA
examination establishes that a noncompensable rating is
warranted. A noncompensable rating is assigned where the
pure tone threshold average is 48 decibels in the left ear,
with speech discrimination of 100 percent (level I). 38
C.F.R. § 4.87, Diagnostic Code 6100. As the hearing acuity
in the nonservice-connected right ear is considered normal
for rating purposes, it is assigned a level I designation.
The findings do not support a compensable evaluation, which
is only possible under the rating schedule in the most severe
cases of unilateral deafness. 38 C.F.R. § 4.85, Code 6100.
The potential application of various provisions of Title 38
of the Code of Federal Regulations (1996) have been
considered whether or not they were raised by the veteran as
required by the holding of the United States Court of
Veterans Appeals in Schafrath v. Derwinski, 1 Vet. App. 589,
593 (1991), including the provisions of 38 C.F.R.
§ 3.321(b)(1). The Board finds that in this case, the
disability picture is not so exceptional or unusual as to
warrant an evaluation on an extraschedular basis. For
example, it has not been shown that the veteran’s disability
has resulted in frequent hospitalizations. The Board is
therefore not required to remand this matter to the RO for
the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).
See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Entitlement to an increased (compensable) evaluation for left
ear hearing loss is denied.
BRUCE KANNEE
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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